119 A.3d 687
D.C.
2015

DARNELL HAWKINS & MARVIN VERTER, JR., APPELLANTS, V. UNITED STATES, APPELLEE.

Nos. 12-CF-1499, 12-CF-1500, 12-CF-1501 & 12-CF-1526

DISTRICT OF COLUMBIA COURT OF APPEALS

Decided July 9, 2015

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 12-CF-1499, 12-CF-1500, 12-CF-1501 & 12-CF-1526

DARNELL HAWKINS & MARVIN VERTER, JR., APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court of the District of Columbia

(CF1-3332-12, CF1-12118-11, CF2-4933-12 & CF1-19790-10)

(Hon. Ronna Lee Beck, Trial Judge)

(Argued March 19, 2014 Decided July 9, 2015)

Abram J. Pafford for appellant Verter.

Phillip C. Zane for appellant Hawkins.

Nicholas Coleman, Assistant United States Attorney, for appellee. Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Vinet Bryant, and SuzAnne C. Nyland, Assistant United States Attorneys, were on the brief for appellee.

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and REID, Senior Judge.

BECKWITH, Associate Judge: After a joint trial, a jury convicted appellants Darnell Hawkins and Marvin Verter of various charges stemming from the May 2010 shooting death of Dawan Felder in the southeast quadrant of the city. On appeal, appellants raise several claims of error. For the reasons explained in this

opinion, we reverse Mr. Hawkins’s conviction for obstruction of justice under D.C. Code § 22-722 (a)(3)(B),1 we reverse Mr. Verter’s conviction for obstruction of justice under D.C. Code § 22-722 (a)(6), and we remand to allow the trial court to enter a judgment of acquittal on those counts as well as to effectuate the merger of Mr. Hawkins’s remaining obstruction convictions under D.C. Code § 22-722 (a)(2)(A) and (B). We affirm appellants’ remaining convictions.

I. Factual Background

According to the testimony of the government’s witnesses, Darnell Hawkins, Marvin Verter, and Dawan Felder were all members of a group called the “Get Money Soldiers” (GMS). They “got money” by selling drugs, assisted in part by several women—including Jerita Campbell, her roommate Dominique Hunter, and their next door neighbor Sharde Wright—who called themselves the “Get Money Bitches.” Jerita Campbell testified, in particular, that she sold marijuana out of her apartment to GMS customers.

After a series of incidents that included a customer’s complaint about being

when the decedent was shot seven times at close range, three times to the head). The evidence was sufficient to support this conviction.

C. Mr. Hawkins’s Obstruction-of-Justice Conviction

Darnell Hawkins also challenges the sufficiency of the evidence supporting one of his obstruction-of-justice convictions—the one resting on evidence that Mr. Hawkins and Jerita Campbell exchanged several phone calls after she gave him a ride in the wake of Mr. Felder’s killing, and that during at least one of those calls, he told her not to tell anybody what happened. Ms. Campbell’s testimony about what Mr. Hawkins said to her about talking was this: “He was saying I—as I was talking to him on the phone as he called me, he was just saying don’t tell nobody what—you know what I’m saying, what happened. They was saying if the police come, tell the police that I didn’t—that I didn’t know nothing.”

Under D.C. Code § 22-722 (a)(3)(B), an individual obstructs justice when he “[h]arasses another person with the intent to hinder, delay, prevent or dissuade the person from . . . [r]eporting to a law enforcement officer the commission of, or any information concerning, a criminal offense.” “Harass” means “to threaten, intimidate, or use physical force against a person or to use any words or actions that have a reasonable tendency to badger, disturb, [or] pester the ordinary person ([i.e., to] seriously alarm, frighten, annoy, or torment).” (Ronald) Wynn v. United States, 80 A.3d 211, 217-18 (D.C. 2013) (quoting Criminal Jury Instructions for the District of Columbia, No. 6.101C (5th ed. rev. 2013) and citing Woodall v. United States, 684 A.2d 1258 (D.C. 1996)). This language is nearly verbatim to the instruction the court gave the jury on this count.

At trial, the government did not underscore for the jury what particular evidence demonstrated that Mr. Hawkins “harasse[d]” Ms. Campbell for purposes of the obstruction statute when he made the statement in question. The prosecutor’s only mention of this obstruction count in her closing argument was her comment that when Mr. Hawkins was “instructing” Ms. Campbell “that she need not talk to the police, that she better not say anything,” that “[t]hat, ladies and gentlemen, is obstruction of justice. All day long.” In her rebuttal argument, the prosecutor repeated this characterization of the obstruction count: “What you have is obstruction of justice with [Mr. Hawkins] telling Jerita Don’t you say anything to the police. Don’t you tell them what happened.”

D.C. Code § 22-722 (a)(3)(B) does not “mak[e] it a crime any time a person ask[s] another person (including a close friend or family member) to lie for him or her in an attempt to evade law enforcement.” Wynn, 80 A.3d at 219 (emphasis in original). Ms. Campbell’s description of what Mr. Hawkins said to her is insufficient in itself to support the jury’s determination that Mr. Hawkins harassed her for purposes of this subsection of the obstruction statute. See id. (stating, where the evidence showed that Wynn asked a friend to assist him in creating a bogus alibi, that “he only asked once” and “[t]here is no evidence that his request was unwanted”).

The government points to other evidence in the record—besides that which the prosecutor highlighted for the jury at trial—that it contends permitted a reasonable juror to conclude that Mr. Hawkins had harassed Ms. Campbell with the intent to keep her from reporting the offense to police. That evidence includes the log of telephone calls between Mr. Hawkins and Ms. Campbell after she dropped him off that night and some references in Ms. Campbell’s testimony to her fear of being labeled a “snitch” and her fear that others in the GMS group—though not Mr. Hawkins—had a key to her apartment.

The evidence regarding the exchange of phone calls and Ms. Campbell’s fear of being labeled a snitch is too sparse and too speculative a basis to support a conclusion beyond a reasonable doubt that Mr. Hawkins obstructed justice under § 22-722 (a)(3)(B) by harassing Ms. Campbell.20 With respect to the phone calls, while Ms. Campbell testified that Mr. Hawkins and Darrell Matthews “kept calling [her],” none of her descriptions of the calls indicated they were badgering or harassing in nature. Ms. Campbell agreed with the characterization of those calls as “back-and-forth traffic on the phone” and made clear that on more than one occasion she initiated the call to Mr. Hawkins. Nor does the record establish how many times Mr. Hawkins and Ms. Campbell actually spoke to each other, as opposed to placing unanswered calls and leaving messages, and the indications in the record that Ms. Campbell consistently called Mr. Hawkins back suggest that she missed his call in the first place.21 Significantly, the record contains no evidence about what Mr. Hawkins and Ms. Campbell said to each other beyond Mr. Hawkins’s initial inquiry about where Ms. Campbell was going that night and

his instruction not to tell anybody what happened. Ms. Campbell did not say, for example, whether Mr. Hawkins repeated the statement about not talking to the police or just made it once. The bits of the phone conversations Ms. Campbell did describe—such as her testimony that she called Mr. Hawkins back “‘[b]ecause they called me to ask me where was I going and I told them I was going . . . with Demarco”—have a matter-of-fact rather than a badgering or harassing quality to them. On this record, the call log and Ms. Campbell’s testimony about the calls do not support the government’s portrayal of the calls as unrelenting harassment.

Ms. Campbell’s testimony about her fear—specifically, her fear of being labeled a “snitch” and her fear that various members of the GMS had keys to her apartment—also fails to support an inference that Mr. Hawkins was obstructing justice under § 22-722 (a)(3)(B) when he told her not to tell the police what happened. In the government’s view, the fact that Ms. Campbell actually lied to the police is evidence of harassment, but her testimony that she was afraid to tell the truth because “[p]eople get killed” when they get “label[ed] as snitches” is unconnected to Mr. Hawkins’s phone calls that night. Ms. Campbell’s testimony instead suggests that her fears stemmed from a “stop snitching” culture that existed in GMS even without somebody telling her not to speak to the police. The government did not show that her fears had any link to Mr. Hawkins’s instruction to her to lie, and Ms. Campbell’s testimony in this regard cannot substitute for evidence of harassment that is otherwise lacking in the record. While the government is not required to negate every theory of innocence, Brown v. United States, 89 A.3d 98, 102 (D.C. 2014) (citation omitted), the verdict also cannot rest on speculation or unwarranted inferences. Rivas, 783 A.2d at 134.

III. Jury Instructions

Mr. Hawkins argues that his obstruction convictions under D.C. Code §§ 22-722 (a)(2)(A) and (B)—those involving statements he made to his girlfriend Teyarra Butler to influence her testimony about the incident—should be vacated because the jury instructions omitted an element of the offense. Specifically, he contends that the instructions omitted the statutory mens rea requirement that the defendant act “corruptly,” improperly replacing it with the phrase “with the intent to undermine the integrity of the proceeding.”

The relevant statutory provisions punish one who:

(2) Knowingly uses intimidation or physical force, threatens or corruptly persuades another person, or by threatening letter or communication, endeavors to influence, intimidate, or impede a witness or officer in any official proceeding, with intent to:

(A) Influence, delay, or prevent the truthful testimony of the person in an official proceeding; [or]

(B) Cause or induce the person to withhold truthful testimony or a record, document, or other object from an official proceeding;

D.C. Code § 22-722 (a) (2012 Repl.). With respect to the count alleging a violation of subsection (A), the trial court instructed the jury that it must find the following elements beyond a reasonable doubt:

[O]ne: Teyarra Butler was a witness in a proceeding in the court of the District of Columbia. Two: Darnell Hawkins knew or believed that Teyarra Butler was a witness. Three: Darnell Hawkins[,] with the intent to undermine the integrity of the proceeding[,] persuaded or tried to persuade Teyarra Butler; and four: Darnell Hawkins did so with the intent to influence, delay or prevent Teyarra Butler’s truthful testimony in that proceeding. The government need not prove that Darnell Hawkins successfully influenced, delayed or prevented Teyarra Butler’s truthful testimony in that proceeding.

The court gave the same instruction to the jury for the subsection (B) offense except for element four, which required the jury to find that Darnell Hawkins “did so with the intent to cause or induce Teyarra Butler to withhold truthful testimony from the proceeding.” To support a conviction, due process requires the government to establish proof beyond a reasonable doubt of every element of the crime charged. In re Winship, 397 U.S. 358, 364 (1970). The government argues that because Mr. Hawkins did not object to the jury instructions at trial, we must review his contention that the instructions omitted an element for plain error only. See, e.g., Beaner v. United States, 845 A.2d 525, 539 (D.C. 2004). Mr. Hawkins asks the court to make a de novo assessment of the instructions for the same reasons we addressed de novo an unpreserved legal challenge to an obstruction-of-justice conviction in (Ronald) Wynn v. United States, 80 A.3d 211 (D.C. 2013)—that is, that the murder charge in that case dominated the trial and the obstruction charge “received inadequate attention from both the parties and the trial court.” Id. at 216-17; cf. Appleton v. United States, 983 A.2d 970, 977 (D.C. 2009) (“Where the question of whether a jury instruction was proper is a legal question, as it is here, we review the instruction de novo.”). Because we discern no error in the court’s instructions under either standard of review, we need not decide whether to follow Wynn’s lead in this case.

This court recently discussed the definition of “corruptly” in Brown v. United States, 89 A.3d 98 (D.C. 2014), where we noted that in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court “analyzed the term ‘corruptly’” in the federal obstruction-of-justice statute by “distilling its connotations into the word ‘wrongdoing.’” Brown, 89 A.3d at 104; see Arthur Andersen, 544 U.S. at 705 (suggesting that the word “corruptly” is normally associated with “wrongful, immoral, depraved, or evil” acts); see also Riley v. United States, 647 A.2d 1165, 1169 n.11 (D.C. 1994) (citing to the Black’s Law Dictionary definition of “corruptly” as “a wrongful design to acquire some pecuniary or other advantage”) (citing BLACK’S LAW DICTIONARY 345 (6th ed. 1990)). In another recent case, Smith v. United States, 68 A.3d 729, 742 (D.C. 2013), we implicitly equated “corruptly” with “intent to undermine the integrity of the pending investigation”22 when listing the elements of obstruction under subsection (a)(6). That language is similar to the definition employed by several federal appellate courts—that to act “corruptly” means to act “knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice.” See, e.g., United States v. Kay, 513 F.3d 432, 454 (5th Cir. 2007); United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013)

(defining “corruptly” as “with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct the” proceeding) (quoting United States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011)). The language in Smith also mirrors the jury instruction provided in this case—“with the intent to undermine the integrity of the proceeding.”

In contending that the jury instruction here did not require the jury to find that Mr. Hawkins acted with the requisite level of intent, Mr. Hawkins relies heavily upon the Supreme Court’s holding in Arthur Andersen, which reversed the petitioner’s conviction based on inadequate jury instructions. 544 U.S. at 708. Somewhat similar to this case, the Fifth Circuit’s pattern jury instruction there defined “corruptly” as “knowingly and dishonestly, with the specific intent to subvert or undermine the integrity of a proceeding.” 544 U.S. at 706 (internal quotation marks omitted). But the problem in Arthur Andersen was not the pattern jury instruction. The Supreme Court instead disapproved of three changes the trial court had made to the pattern instruction by adding the word “impede” to “subvert” and “undermine,” by removing the word “dishonestly,” and by inserting a statement that “even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty.” Id. Taken together, these changes “diluted the meaning of ‘corruptly’ so that it covered innocent conduct.” Id.

The jury instruction in Mr. Hawkins’s case did not suffer from such flaws. Although adding the words “knowingly and dishonestly” and “with an improper purpose” would bring our case law into accord with several federal circuits, the word “undermine” itself “convey[s] the requisite consciousness of wrongdoing,” id., and thus the instructions here required the jury to find beyond a reasonable doubt that Mr. Hawkins acted corruptly.

Relying on Arthur Andersen’s statement that it is not “corrupt” to persuade a spouse “not to disclose marital confidences,” 544 U.S. at 704 (citing Trammel v. United States, 445 U.S. 40 (1980)), Mr. Hawkins further asserts that the instruction here was deficient because it allowed a conviction for “asking one’s intimate partner to lie to the police,” which in his view is also “not necessarily corrupt.” Yet Arthur Andersen’s citation to Trammel signals that the Court was referring to spousal privilege, which is a limited exception to the general rule that “the public . . . has a right to every [person]’s evidence.” Trammel, 445 U.S. at 50 (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)). Mr. Hawkins and his then-girlfriend Ms. Butler cannot invoke this privilege, which in the District of Columbia applies only to married spouses and domestic partners, D.C. Code § 14-306. Arthur Andersen also did not condone persuading a spouse to lie, which undermines a court proceeding far more than withholding relevant evidence pursuant to an evidentiary privilege.

We conclude that the trial court did not err in instructing the jury regarding the elements of the obstruction counts against Mr. Hawkins under D.C. Code §§ 22-722 (a)(2)(A) and (B).

IV. Merger

Mr. Hawkins makes three arguments that various convictions should merge. Merger doctrine stems from the Fifth Amendment Double Jeopardy Clause, which prohibits multiple punishments for the same offense. Wilson v. United States, 528 A.2d 876, 879 (D.C. 1987) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). “[A] single transaction may result in distinct offenses under separate statutes without violating the Double Jeopardy Clause.” Id. (citing Albernaz v. United States, 450 U.S. 333, 344-45 n.3 (1981)). Under the Blockburger test, offenses merge “unless each contains at least one element which the other does not.” Id. (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).

Mr. Hawkins first argues that his sentencing enhancement for “committing crime while armed,” D.C. Code § 22-4502, merges with his conviction for PFCV, D.C. Code § 22-4504 (b). We rejected this claim, however, in Thomas v. United States, 602 A.2d 647 (D.C. 1992), and we cannot overrule the prior decision of another division of this Court. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). Mr. Hawkins also argues that his conviction for CPWL, D.C. Code § 22-4504 (a), merges with his armed weapon enhancement and PFCV charge. Section 22-4504 (a) has recently been amended, see D.C. Law 19-170 (2012), but at the time of trial in June 2012, that crime required proof that the pistol was “without a license issued pursuant to District of Columbia law.” D.C. Code § 22-4504 (a) (2001). Neither of his other charges required proof of non-licensure, and each required additional elements (for instance, murder or commission of a crime) not present in the CPWL charge. These convictions therefore do not merge.

Lastly, Mr. Hawkins argues that his obstruction convictions under D.C. Code §§ 22-722 (a)(2)(A) and (a)(2)(B) should merge, as both convictions were predicated on his instructions to Teyarra Butler to testify falsely before the grand jury. As charged here, subsection (A) makes it a crime to “[i]nfluence . . . the truthful testimony of the person in an official proceeding,” while under subsection (B) it is unlawful to “[c]ause or induce the person to withhold truthful testimony . . . from an official proceeding.” Besides an unpersuasive contention that Mr. Hawkins waived his merger argument,23 the government’s sole argument opposing merger is its statement that Mr. Hawkins’s “claim is without merit,” followed by a citation to Brown v. United States, 766 A.2d 530, 541 (D.C. 2001). Brown is inapposite, however, as the relevant portion of that opinion discusses the difference between obstructing truthful as opposed to false testimony, and the opinion actually demonstrates that each defendant was convicted of only one count of obstruction for conduct that allegedly violated either subsection (a)(2)(A) or (B). Id. at 541, 551. Nor do we believe Mr. Hawkins’s two convictions are distinct because his instruction to Ms. Butler caused her both (1) to falsely testify

that Mr. Hawkins denied committing the murder and (2) to not testify that Mr. Hawkins had confessed to committing the murder. While one can withhold the truth without making a false statement, telling a lie necessarily includes withholding the truth too, so a person who “influences” truthful testimony under subsection (a)(2)(A) by instructing a person to lie will violate subsection (B) as well. Therefore, under a straightforward Blockburger analysis, the elements of subsection (a)(2)(A) as charged here completely encompass subsection (a)(2)(B), and these two convictions merge.

V. Severance

In his final challenge to his convictions, Mr. Hawkins argues that the trial court erred by not severing his trial with Mr. Verter pursuant to Super. Ct. Crim. R. 14. He contends, in particular, that severance was necessary because Mr. Verter’s counsel acted as a “second prosecutor” by establishing that Mr. Hawkins was in possession of his cell phone at the time of the murder24 and by “invent[ing] a motive for the crime that no witness had suggested.”

Mr. Hawkins did not request severance prior to trial as required by Super. Ct. Crim. R. 12 (b)(5). Nor did he object at trial. We therefore review the trial court’s failure to sever the joint trial for plain error. Taylor v. United States, 603 A.2d 451, 456 n.17 (D.C. 1992); cf. Hammond v. United States, 880 A.2d 1066, 1089 (D.C. 2005), abrogated in part on other grounds by Davis v. Washington, 547 U.S. 813 (2006) (plain error review when appellant did not contemporaneously object to joinder based on events occurring during trial).

The fact that counsel for one defendant effectively acts as a “second prosecutor” is generally insufficient to constitute prejudice requiring severance. Roy v. United States, 871 A.2d 498, 505 (D.C. 2005); Mitchell v. United States, 569 A.2d 177, 182 (D.C. 1990). Here, where there was substantial evidence of Mr. Hawkins’s guilt independent of the facts and alleged motive posited by Mr. Verter’s counsel, we find no plain error. Id. at 181-82; Dancy v. United States, 745 A.2d 259, 266 (D.C. 2000). Mr. Hawkins cannot show that any error was “so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial,” Taylor, 603 A.2d at 456 n.17 (quoting Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc)).

VI. Conclusion

For the foregoing reasons, we reverse Mr. Hawkins’s conviction for obstruction of justice under D.C. Code § 22-722 (a)(3)(B) and Mr. Verter’s conviction for obstruction of justice under D.C. Code § 22-722 (a)(6), and we remand for entry of a judgment of acquittal on those counts. We also remand for merger of Mr. Hawkins’s obstruction convictions under D.C. Code § 22-722 (a)(2)(A) and (B). We affirm all remaining convictions.

So ordered.

Notes

1
All D.C. Code citations are to the 2012 Replacement unless otherwise noted.
20
The government stated in its brief that there were “dozens” of phone calls between the two and relied on this fact—and more specifically, on “how intently Hawkins focused on Campbell in the hours immediately after the murder”—to support its contention that a reasonable person in Ms. Campbell’s position would have felt harassed by Mr. Hawkins’s instructions. In a letter to the court before oral argument, the government corrected its estimation of the number of calls, stating that Mr. Hawkins made ten calls, as opposed to almost fifty calls, to Ms. Campbell during this time period. As we note infra, the jury learned almost nothing about the content of these calls between Mr. Hawkins and Ms. Campbell.
21
Indeed, our review of the call logs suggests that four of Mr. Hawkins’s ten calls were routed to voicemail and another lasted only two seconds.
22
A pending investigation is just one of several events that qualifies as an “official proceeding” within the meaning of the statute. See D.C. Code § 22-721 (4).
23
The government contends that Mr. Hawkins waived his merger argument because he “does not offer any substantive argument” and “cites no case law to support his general assertion that Sections 722 (a)(2)(A) and (B) of the obstruction statute ‘merge.’” Yet the two sentences Mr. Hawkins devotes to the issue succinctly state both the relief he is requesting—the merger of these two offenses—and the reasons such relief is warranted. Merger is required, Mr. Hawkins argues, “because it is difficult to see a difference between (1) influencing truthful testimony, which, to constitute an offense surely includes not giving, and therefore, withholding truthful testimony, and (2) withholding truthful testimony,” and because even “[i]f the two are subtly different, the first includes the second because to give something other than truthful testimony is to withhold truthful testimony.” With or without a case citation, we disagree with the government’s characterization of this discussion as devoid of substantive argument.
24
The homicide detective that interviewed and arrested Mr. Hawkins had testified at trial that he knew, based on GPS data, that Mr. Hawkins’s phone was in the area of the shooting at the time that it occurred.